Judicial Follies: Equivalent Employment

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Actress Shirley Maclaine has continued to work in film and television, although at age 84 the number and significance of her parts has varied greatly. Her last major role was arguably ten years ago when she played fashion designer Coco Chanel in a made-for-television biography. She also garnered attention for an occasional role in the British television series Downton Abbey, playing the mother of Elizabeth McGovern’s character. Over the years, she’s become as well-known for her somewhat . . . unusual notions of spirituality and reincarnation set forth in several autobiographies.

But it was not always so. In the early 1960s Maclaine was much in demand. She had been nominated for an Oscar for her part in the Jack Lemmon farce “The Apartment,” which was written by the legendary Billy Wilder. In 1961 she appeared in the drama “The Children’s Hour” with James Garner and Audrey Hepburn, and in 1963 she re-teamed with Lemmon (and Billy Wilder) in the romantic comedy “Irma La Douce.”

In the following years she worked several times for Twentieth-Century Fox, which in 1966 offered her a “minimum guaranteed contract” at $750,000 (a lot of money in 1966) to star in a film version of the Broadway musical “Bloomer Girl.” Fox eventually decided not to produce “Bloomer Girl,” and instead offered Maclaine an alternative project called “Big Country, Big Man” a western drama to be filmed in Australia (unlike Bloomer Girl,” which was to be made in Los Angeles). The studio gave her a week to decide.

Maclaine passed on “Big Country, Big Man” but decided to sue Twentieth-Century Fox for the $750,000 anyway. Her argument was that the Australian production was not the equivalent of the musical production she had originally been offered, and therefore Fox breached its contract with her. She couldn’t commute from home! The water in the sink would drain in the wrong direction! (Allegedly.) And so on.

Surprisingly, the trial judge agreed with her, finding that the equivalency of the two productions were not in dispute — to the point that the judge decided the case without even requiring a trial. This was a big deal at that time, when the rules about deciding a case on the merits without a trial were even stricter than they are today. So Fox appealed, and in 1970 the case reached the California Supreme Court.

Which, as things turned out, didn’t make a bit of difference. The Supreme Court upheld the trial judge’s ruling 6-1. It’s possible that having a case involving movie stars might have had something to do with the court reaching its decision, but for whatever reason the court jumped right on that “equivalency” bandwagon.

“The mere circumstance that ‘Bloomer Girl’ was to be a musical review calling upon plaintiff’s talents as a dancer as well as an actress, and was to be produced in the City of Los Angeles, whereas ‘Big Country’ was a straight dramatic role in a ‘Western Type’ story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments” the court intoned. “The female lead as a dramatic actress in a western style motion picture can by no stretch of imagination be considered the equivalent of or substantially similar to the lead in a song-and-dance production.”

Well, they do get some important legal issues to decide up there at the Supreme Court. Now the court has confirmed this for all time. A musical production is not the same thing as a “Western Type” story. Got it.

The one judge who dissented had what was probably the better argument, even though his position didn’t get any other votes. He contended that it was really a factual question, and not something that was so obvious beyond dispute, that the two roles weren’t “equivalent.” The rule was as well-established in 1966 (or in 1970) as it is today: factual disputes are supposed to go to a jury, and can’t be decided by a judge based on written arguments alone. But that’s not the law in California, at least where movie roles are concerned, thanks to this case.

Still, one has to wonder if Ms. Maclaine might have brought the lawsuit for a slightly different reason from the ones stated. In 1965 she had appeared in a . . . somewhat unusual movie for Twentieth-Century Fox. It was entitled “John Goldfarb, Please Come Home!” and involved an exhibition football game between Notre Dame’s Fighting Irish and a university in a fictional Middle Eastern country (don’t ask). It may well have been the silliest movie of the decade — in a decade awash in silly movies.

So perhaps her lawsuit was just a way to retaliate for “John Goldfarb, Please Come Home!”